Can a grand jury indict someone for a crime committed in a different county?

Plain-English summary

A county attorney asked whether a grand jury in Kleberg County could indict people for crimes committed in neighboring Kenedy County. The practical backdrop: hundreds of people were detained each year at the United States customs checkpoint in Kenedy County, then often turned over to state and local officers, taken to Kleberg County for bail, and presented to a Kleberg County grand jury. Defendants who pleaded guilty usually consented to venue in Kleberg; if a defendant objected, the indictment was dismissed and the case sent to Kenedy County.

The office concluded a Kleberg County grand jury could indict for a Kenedy County offense as long as venue for that offense was proper in Kleberg County. The grand jury statutes (chapter 20 of the Code of Criminal Procedure) do not confine a grand jury to crimes committed in its own county. Venue, which is a separate question from a court's jurisdiction, is set by statute, and when the legislature places venue for a kind of offense in a particular county, it necessarily authorizes that county's grand jury to indict for the offense. Because Kleberg, Kenedy, and Nueces Counties sat in the same multicounty judicial district (the 105th), several venue statutes could put venue in Kleberg. The office did not decide whether any particular Kenedy County offense could be indicted in Kleberg, because that turns on the venue rules for the specific offense and has to be judged case by case.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Code of Criminal Procedure venue articles cited here have been amended since 1994, and the boundaries and composition of Texas judicial districts change over time. Read this page for how the office tied a grand jury's reach to the venue statutes in 1994, not for the current venue rule for any particular offense.

What the opinion meant for those who asked

For county attorneys and prosecutors in multicounty districts: The opinion concluded a grand jury could indict for an offense committed in another county when venue for that offense lay in the grand jury's own county, but it left the question of any specific offense to a case-by-case venue analysis.

For defendants taken to a neighboring county for indictment: The opinion treated the venue statutes as the controlling limit on where a grand jury could reach. The request described a practice in which a defendant who objected to venue in Kleberg had the indictment dismissed and the case moved to Kenedy County, and the opinion addressed only the grand jury's authority where venue in Kleberg was proper.

Common questions

Can a grand jury indict for a crime committed in another county?
Under this opinion, yes, when venue for that offense is proper in the grand jury's county. Nothing in the grand jury statutes confines a grand jury to crimes committed in its own county.

What is the difference between venue and jurisdiction here?
Jurisdiction is a court's authority to hear a case; venue is the county where a case may be tried. The office relied on the venue statutes, which the legislature can set in a county other than the one where the offense occurred.

Did the opinion say the Kleberg grand jury could indict for any Kenedy County crime?
No. The office declined to decide any specific offense, because that depends on the venue statute for that offense and must be resolved case by case.

What happened if a defendant objected to venue in Kleberg?
The request explained that, in practice, an objection led to dismissal of the indictment and transfer of the case to Kenedy County. The opinion did not disturb that practice; it addressed only the grand jury's authority where venue in Kleberg was proper.

Background and statutory framework

The Texas Constitution authorizes grand juries (art. I, § 10; art. V, §§ 13, 17; art. XVI, § 19) but does not define the scope of their inquiry. Chapter 20 of the Code of Criminal Procedure sets out a grand jury's duties; article 20.09 directs it to inquire into all indictable offenses of which any member has knowledge or of which it is informed by the State's attorney or any credible person. No article in chapter 20 limits a grand jury to offenses committed in its own county, and none expressly authorizes indictment for offenses committed elsewhere, so the office looked to the grand jury's place in the venue scheme of chapter 13.

Jurisdiction (a court's authority to hear a case) is distinct from venue (the county where a case may be tried), and venue is governed by statute (Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978)). Absent a specific venue statute, the proper county is the one where the offense was committed (art. 13.18), but the legislature has set venue elsewhere for some offenses: for example, marihuana possession or delivery may, with the defendant's consent, be tried in an adjacent county in the same judicial district (art. 13.22), and article 13.20 allows venue by written consent for felony bench trials anywhere in the judicial district. An indictment may also allege that the offense occurred in the county of prosecution or where it was actually committed (art. 21.06). Reading these provisions together, the office concluded that when the legislature provides venue in a county for a kind of offense, it necessarily authorizes a grand jury in that county to indict for that offense, and Kleberg, Kenedy, and Nueces Counties shared the 105th Judicial District (Gov't Code § 24.207). The office cautioned that whether any particular Kenedy County offense could be indicted in Kleberg depended on the applicable venue statute and had to be decided case by case.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. I, § 10; art. V, §§ 13, 17; art. XVI, § 19 (grand juries); art. V, §§ 1, 8 (district court jurisdiction)
• Code of Criminal Procedure art. 20.09 (scope of grand jury inquiry); art. 4.05 (district court felony jurisdiction)
• Code of Criminal Procedure art. 13.18 (default venue in county of offense)
• Code of Criminal Procedure art. 13.20 (venue by consent for felony bench trials)
• Code of Criminal Procedure art. 13.22 (venue for marihuana offenses in adjacent county)
• Code of Criminal Procedure art. 21.06 (indictment may allege offense in county of prosecution)
• Gov't Code § 24.207 (105th Judicial District: Kleberg, Kenedy, and Nueces Counties)

Cases discussed:

• Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978), cert. denied, 440 U.S. 936 (1979)
• Rushing v. State, 546 S.W.2d 610 (Tex. Crim. App. 1977)
• Gonzales v. State, 175 S.W. 706 (Tex. Crim. App. 1915)
• Willard v. State, 87 S.W.2d 269, 271-73 (Tex. Crim. App. 1935)
• Treadgill v. State, 275 S.W.2d 658 (Tex. Crim. App. 1954)
• Nichols v. State, 12 S.W. 500 (Tex. Ct. App. 1889)
• State v. Lewis, 55 S.E. 600, 603-04 (N.C. 1906)
• Pigg v. State, 160 S.W. 691 (Tex. Crim. App. 1913)
• Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex. Civ. App. 1963)
• In re May 1972 San Antonio Grand Jury, 366 F. Supp. 525 (W.D. Tex. 1973)

Prior Attorney General opinion referenced: M-1171 (1972).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0291
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0291.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 2, 1994

Honorable Roy C. Turcotte
Kenedy County Attorney
P.O. Box 186
Sarita, Texas 78385

Opinion No. DM-291

Re: Whether a Kleberg County grand jury is authorized to return an indictment for an offense that was committed in Kenedy County

Dear Mr. Turcotte:

You ask, in essence, whether a Kleberg County grand jury is authorized to return an indictment for an offense that was committed in Kenedy County. You explain that hundreds of people are detained for illegal activities at the United States customs checkpoint in Kenedy County each year. Frequently, detainees are turned over to state and local law enforcement officers for arrest and prosecution. Typically, such a detainee is taken to Kleberg County where bail proceedings are held and the case is presented to a grand jury. At arraignment, defendants who plead guilty usually consent to venue in Kleberg County. If a defendant objects to venue in Kleberg County, the indictment is dismissed, and the case is transferred to Kenedy County for presentation to a Kenedy County grand jury.

Grand juries are authorized by several provisions of the Texas Constitution, but none of these provisions defines the scope of their inquiry. See Tex. Const. art. I, § 10; art. V, §§ 13, 17; art. XVI, § 19; see also Attorney General Opinion M-1171 (1972) at 1. Grand jury duties are set forth in chapter 20 of the Code of Criminal Procedure. Article 20.09 provides that "[t]he grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person." Neither this provision nor any other article in chapter 20 limits a grand jury to returning indictments for offenses committed in the county. On the other hand, no provision in chapter 20 expressly states that a grand jury is authorized to return an indictment for an offense committed in another county. Thus, to answer your question, we look to the role of the grand jury in the larger criminal justice scheme, particularly its relationship to the venue statutes set forth in chapter 13 of the Code of Criminal Procedure.

Kleberg, Kenedy, and Nueces Counties comprise a multicounty judicial district, the 105th Judicial District. See Gov't Code § 24.207. With certain exceptions, district courts have original jurisdiction over felony cases. Tex. Const. art. V, §§ 1, 8; Code Crim. Proc. art. 4.05. Whereas jurisdiction goes to a court's authority to hear a case, venue has to do with the county where a case may be tried. Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978), cert. denied, 440 U.S. 936 (1979). Venue is governed by statute. Generally, if venue is not specifically provided for by statute, the proper county for the prosecution of an offense is the county in which the offense was committed. Code Crim. Proc. art. 13.18.

The legislature has, in the case of some offenses, specifically provided for venue in counties other than the county where the offense was committed. For example, article 13.22 of the Code of Criminal Procedure provides that the offense of possession or delivery of marihuana may be prosecuted in the county where the offense was committed or, with the consent of the defendant, "in a county that is adjacent to and in the same judicial district as the county where the offense was committed." In addition, article 13.20 of the Code of Criminal Procedure provides for venue by consent in certain circumstances:

The trial of all felony cases without a jury, may, with the consent of the defendant in writing, his attorney, and the attorney for the state, be held in any county within the judicial district or districts for the county where venue is otherwise authorized by law.

We also note that the legislature has provided that when an offense may be prosecuted in either of two or more counties, "the indictment may allege the offense to have been committed in the county where the same is prosecuted or in any county or place where the offense was actually committed." Code Crim. Proc. art. 21.06; see also Rushing v. State, 546 S.W.2d 610 (Tex. Crim. App. 1977) (holding that it was not error for indictment to aver that the offense occurred in Dallas County when offense actually occurred in another county within four hundred yards of the Dallas County line).

Under common law, venue was held in the county where an offense was committed, and grand juries generally were limited to inquiring into offenses committed within the county. See 41 Am. Jur. 2d Indictments and Informations § 15, at 890; State v. Lewis, 55 S.E. 600, 603-04 (N.C. 1906) (citing 4 W. Blackstone, Commentaries 303); Nichols v. State, 12 S.W. 500 (Tex. Ct. App. 1889). We are aware, however, of no constitutional or statutory prohibition against a grand jury returning an indictment for an offense which was committed outside the county but for which venue in the county would be proper. See 22 Tex. Jur. 3d Criminal Law § 1933, at 75-76 (1982) ("there is no provision of the state or federal constitution prohibiting the legislature from authorizing a prosecution in a county other than the one where the offense was committed") (citing Treadgill v. State, 275 S.W.2d 658 (Tex. Crim. App. 1954)); State v. Bullock, 79 So. 337, 338 (Fla. 1918). We believe that when the legislature provides for venue in a county with respect to a particular kind of offense, it also necessarily authorizes a grand jury in that county to return an indictment for such an offense. For example, because section 13.22 of the Code of Criminal Procedure provides for the prosecution of the offense of possession or delivery of marihuana, with the consent of the defendant, in a county that is adjacent to and in the same judicial district as the county where the offense was committed, a grand jury in such a county may properly return an indictment for such an offense. See generally Gonzales v. State, 175 S.W. 706 (Tex. Crim. App. 1915) ("The general rule where not otherwise fixed by statutory enactment, is that the county in which the offense is committed alone has jurisdiction. The statute may change this order, and in many cases has done so."); see also Willard v. State, 87 S.W.2d 269, 271-73 (Tex. Crim. App. 1935) (on motion for rehearing) (explaining Gonzales, 175 S.W. 706).

You express the concern that "[i]f it is the rule of law that the jurisdictional authority of a grand jury is coextensive with the territorial jurisdiction of the court for which it services in a multicounty judicial district, then this logic would seem to authorize a grand jury to investigate activities in any county within the judicial district. Conceivably then, a Kenedy County grand jury could investigate and return indictments for offenses occurring in Nueces or Kleberg counties." Your concern overlooks the fact that the legislature, in enacting the venue statutes, has necessarily authorized a grand jury to return indictments for certain offenses committed outside the county.[1]

For the foregoing reasons, we conclude that a Kleberg County grand jury may return an indictment for an offense committed in Kenedy County provided that venue would be in Kleberg County. We do not determine whether a Kleberg County grand jury would be authorized to return an indictment for a particular offense committed in Kenedy County because you have not specified the types of offenses committed in Kenedy County for which the Kleberg County grand juries have returned indictments. Furthermore, the determination whether it is appropriate for a grand jury to return an indictment for a particular offense committed in another county must be made on a case by case basis.

SUMMARY

A Kleberg County grand jury may return an indictment for an offense committed in Kenedy County for which venue in Kleberg County is proper. The determination whether it is appropriate for a grand jury to return an indictment for a particular offense committed in another county must be made on a case by case basis.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

DREW DURHAM
Deputy Attorney General for Criminal Justice

WILL PRYOR
Special Counsel

RENEA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] We do not believe that Pigg v. State, 160 S.W. 691 (Tex. Crim. App. 1913), a case you cite in your letter, is to the contrary. In that case, the court concluded that the grand jury had the right to inquire only about "offenses committed in Hamilton county or that could be prosecuted in Hamilton county." Id. at 693 (emphasis added). This statement is fully consistent with our conclusion. Rodgers v. County of Taylor, 368 S.W.2d 794, 796 (Tex. Civ. App. 1963, writ ref'd n.r.e.), involves whether payments to a court reporter for transcribing a grand jury proceeding constituted a proper county expense. In re May 1972 San Antonio Grand Jury, 366 F. Supp. 525 (W.D. Tex. 1973), deals with the authority of a federal grand jury. Neither of these latter two cases is dispositive of the issues considered here.